WILFRED EXALISSE
v.
STATE
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Summary denial of a 3.850 motion is improper when the record does not conclusively refute an allegation that trial counsel affirmatively misrepresented the sentence a defendant would receive upon entering an open plea.
[1] A general question posed during a plea colloquy inquiring whether the defendant received promises in exchange for the plea does not conclusively refute a specific allegat…
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Join FLexlaw to unlock all legal intelligence“the general question during plea colloquy about promises made in exchange for plea is insufficient to conclusively refute allegation of specific misadvice by counsel about length of sentence”
Court citing Collazo v. State in explaining why summary denial was improper regarding the second claim
Wilfred Exalisse appealed the summary denial of his Rule 3.850 postconviction relief motion. Exalisse's second claim alleged that his trial counsel ha…
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PER CURIAM. Wilfred Exalisse appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm, except as to the denial of Exalisse’s second claim. The records attached to the trial court’s order do not conclusively refute Exalisse’s claim that his trial counsel had affirmatively mispresented the sentence that Exalisse would receive if he entered an open plea to the court. See,
e.g., Collazo v. State, 8 So. 3d 1273, 1274 (Fla. 5th DCA 2009) (holding the general question during plea colloquy about promises made in exchange for plea is insufficient to conclusively refute allegation of specific misadvice by counsel about length of sentence).
On remand, the trial court shall either attach additional records conclusively refuting this claim or hold an evidentiary hearing.
AFFIRMED, in part; REVERSED, in part; and REMANDED.
TORPY, EVANDER and BERGER, JJ., concur.